Dorf: If court kills mandate, current Congress won't fight to save it; political stakes are high

As the nine Supreme Court Justices deliberate in private about this week's arguments for and against the constitutionality of the health insurance mandate, they will officially contemplate such matters as how to define commerce and whether a penalty is a tax. But in the back of their minds will be a quite different question: whether to rob President Barack Obama and the Democratic Party in Congress of their most significant domestic policy achievement.

In trying to disregard that political consideration, they may well be haunted by the specter of their politically divisive ruling inBush v. Gore and Citizens United v. FEC.

The wall-to-wall coverage of oral arguments may have left many Americans thinking that the litigation raises once-in-a-generation issues on par with those addressed in Marbury v. Madison, which established the power of judicial review, or Brown v. Board of Education, which required school desegregation. That impression is false: It is the political stakes of the health care case that are enormous, while the constitutional questions it poses are relatively unimportant.

So far as the long-term powers of Congress are concerned, it hardly matters how the justices resolve the case.

Michael Dorf

Since the New Deal, the Supreme Court has accepted that Congress has the power to regulate nearly every aspect of economic life.

A handful of cases from the past two decades impose limits on the outer bounds of that power, but they do not fundamentally alter the reality that since 1789, the scope of the power to regulate interstate commerce has grown with the national economy.

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Thus, a Supreme Court decision upholding the health insurance mandate would not greatly empower Congress, which is already nearly omnipotent. Since the 1930s, it's been politics, not constitutional law, that has constrained congressional power.

Conversely, a Supreme Court decision invalidating the mandate would not seriously undermine congressional authority. A new constitutional rule declaring that "inactivity" cannot be regulated as interstate commerce would leave Congress free to invoke other powers to accomplish nearly any objective it might hope to achieve through a mandate.

Consider the power to tax.

Congress could pass a law requiring all persons filing income tax to pay a surcharge to cover health care costs of uninsured Americans, while at the same time giving an offsetting tax credit to anyone who purchased or otherwise received health insurance. The result would be a clearly valid tax that accomplished just about everything that the present law accomplishes.

Indeed, the government argues that the existing mandate should be upheld as a valid exercise of the taxing power. Yet even if the government loses that argument, there is little doubt that Congress has the authority to fix the law to make it a valid exercise of the taxing power.

Of course, everybody knows that if the Supreme Court invalidates the mandate, the current Congress would not try to save it. Since the law was enacted in 2010, the membership of Congress has changed, and the health care law has become a central issue in electoral politics. When the plaintiffs brought their legal challenge to the court, they embroiled the justices in a political fight.

Are there clues to how the court will resolve the case?

During the oral argument, the key "swing" Justice, Anthony Kennedy, indicated that he would only vote to uphold the individual mandate if he could find a logical stopping point to the government's argument.

I was a law clerk for Justice Kennedy 20 years ago, and while that experience provides me with no crystal ball with which to foretell his vote, I am reasonably confident about how he will go about making up his mind.

Justice Kennedy often says that the court's authority rests on its ability to provide reasons for its rulings and so that until a persuasive opinion has been drafted, he regards his vote on any case as tentative. He wants to know whether a particular disposition will "write." If it does not, he may well change his vote even after the justices' conference.

By contrast, the health care litigation appears to pose a timeless issue of federalism. That appearance is deceiving. The constitutional question of federalism is relatively unimportant, but as the crowds outside the Supreme Court building underscored, the political stakes could not be higher.